Civil Rights: EAJA Attorney’s Fees Were Properly Denied In Immigration Matter Where It Took A Ninth Circuit En Banc Panel To Decide, Over The Vote Of Three Dissenting Justices, On The Ultimate Merits Issue.

Novelty And First Impression Of The Issue Showed That The Government’s Position Was Substantially Justified For EAJA Purposes.

            In Medina Tovar v. Zuchowski, No. 21-35664 (9^th Cir. July 21, 2022) (published), plaintiffs invalidated a regulation limiting derivative U-visas to spouses married at the time of the filing of the principal petition.  Plaintiffs moved for costs and attorney’s fees under the Equal Access to Justice Act (EAJA), 28 U.S.C. § 2412, but the district court denied the request because it concluded the government’s position was substantially justified.  The Ninth Circuit affirmed.  Simply because plaintiffs prevailed was insufficient, not creating any adverse presumption in favor of a costs/fee recovery.  Here, there was a novel, first impression issue which took an en banc circuit court to ultimately decide, over the votes of three dissenting justices and with the prior three judge decision being 2-1 on the merits issue.  The government’s position was not out of bounds.